refund 1If any Penalty Charge Notice has been issued in correct and fully lawful circumstances, as most are, then NMAG recognises that it was properly issued so that payment of the penalty charge should be the end of the matter.

However, in circumstances where payment of the charge is discovered to have been made in any circumstances when payment was found not to have been due it is automatically incumbent on the enforcement authority to refund the payment that should not have been demanded and subsequently paid.

Wrongly-issued penalty charge notices

Massive numbers of Penalty Charge Notices are wrongly issued on a regular basis for alleged contraventions of local authority parking and traffic restrictions where the alleged contravention did not actually occur. Just because it may seem on the face of it that a contravention has occurred does not mean that it has.

Similarly, many thousands of speeding fines have been wrongly incurred by motorists where the speed restriction was later found to have been not lawfully imposed or signed or the correct procedures not followed.

To enable the lawful issue to a motorist of a PCN demanding a penalty payment there are many things that local authority must get right by complying with Statutory Regulations and duties, most of which are well known and are simple to understand and implement with elementary care and attention.

It is a sad commentary on the state of local authority enforcement which has existed for many years that, for reasons of incompetence or carelessness on their part, things are often found to be wrong in their traffic orders, their signing of street and car park restrictions, and in their enforcement procedures. See Causes of unlawful parking and traffic enforcement.

It is inexcusable and far worse for a local authority to be in breach of Statutory Regulations and their statutory duties than for a driver to contravene a local bylaw parking restriction by waiting five minutes longer than a parking sign shows or to be parked slightly outside a bay marking.

NMAG acknowledges that many enforcement authorities are competent and conscientious and conduct their enforcement lawfully but too many are found to be otherwise.

Appeals Tribunals

Unenforceable irregularities in local authority parking and traffic operations are frequently brought to light and confirmed at appeals to the National and London appeals tribunals, by observant parking campaigners [1]  and, occasionally, by complaints to the Local Government Ombudsman.

If a motorist has shown at a parking or traffic appeal that a parking bay or its sign has not been in accordance with law so that he/she wins a parking or traffic appeal for that reason, then every other driver who was penalised in the same circumstances was inevitably penalised unlawfully as wrongly as the motorist who won their appeal.

If a PCN or other enforcement notice issued by an authority is proved by a motorist to have been defective in itself sufficient to render it invalid and unenforceable then every other similar notice will have been of no lawful force for the same reason.

Unlawful Penalty Demands

If there is any aspect of a penalty demand issued to one motorist that has been established to have been unlawful then every other penalty demand issued in the same circumstances will have been identically unlawful so that none of the contravention allegations should have been made by the enforcement authority in the first place.

No enforcement authority has power to demand, or take, or keep any money (such as parking/traffic penalty money) that it has not demanded and acquired fully in accordance with the law. To avoid contravention of the criminal law an enforcement authority must afford everyone found to have been wrongly induced to pay a penalty or fine the opportunity to have their payment refunded to them. No authority has power to keep or use any property (which includes money) that has not lawfully come into its possession. See Resisting refunds and excuses.

Too many authorities to the present day have had it established that in parts of their parking and traffic enforcement there have been some unenforceable irregularities that were unintentional because of oversight or incompetence. That may to some extent be forgiveable but some have then compounded that situation into possible criminality by making specious and evasive excuses to assert that they are entitled to keep the unlawfully-acquired penalty money later discovered not to belong to them

False and meaningless claims

One reprehensible common response of some authorities and their apologists is to make the false and meaningless claim that having paid a penalty is “deemed to have been an admission of liability”. They never say by whom it is deemed ; it is not so “deemed” by the law and cannot possibly be. See Fallacious ‘admission of liability’.

NMAG reports on very many enforcement authorities, including police safety partnerships, that have properly refunded millions of pounds of unlawfully-taken penalty payments and speeding fines to the motorists who paid them. Some have correctly done so of their own volition but others have done so only after being persuaded or shamed by vigorous lobbying. See Properly made refunds.

[1] The Department of Transport has made plain that Government will not involve itself in monitoring enforcement conduct of local authorities and sees, with others, “campaign groups playing the principal role in holding local authorities to high standards”. NMAG’s position is that an Independent Parking Regulator would be a way forward to ensure local authorities complied fully with the law in all aspects of their parking enforcement policy and practice.

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